Canada Updates ‘Restoration’ Provisions for Temporary Residents/Work Permit Holders

2020 July 15

Background

Temporary residents in Canada generally fall into three categories: Workers, Students, or ‘Ordinary’ Visitors (though this might include, e.g., business visitors, etc.). For our purposes, we will be looking primarily at workers.

When a person arrives in Canada under temporary status, their time allowed in Canada is limited to a certain period. In the case of a worker, their work permit will indicate an expiry date. If they wish to remain in Canada beyond that period, they need to apply for an extension of their status before their valid status expires. Besides the technical issues of how and when to extend, anyone seeking to remain in Canada beyond a previously-issued expiry date must show the substantive legal justification for the application.

[Note that status is different than a visa. A visa allows a person to travel to Canada. Status is what a person gets once they are admitted. Applying for a new visa will not impact status.]

‘Implied Status’

If a person applies for their extension before their current status expires, they will have ‘implied status’ – meaning that even if their new document does not arrive before the current one expires, they can continue in their current status, and in the case of a worker, continue working.

Restoration (as distinguished from Implied Status)

However, if a person allows their status to lapse, then in order to get back into status, they will need to apply for ‘Restoration’. Until now, the period during which one could apply for Restoration was 90 days after the expiry of status. Note that during this period, unlike implied status, the worker could not continue to work, until such time as a new work permit was received. Note as well that there is an additional cost to a Restoration application.

What’s Changed (re Restoration)

The government has now announced that, in light of the COVID situation, anyone whose status expired after January 30, 2020, will now be able to seek Restoration up until December 31, 2020.

Further, the government has also indicated that those seeking Restoration can work during the application period, if:

• They have a job offer,
• The job offer is supported by an LMIA or an LMIA-exempt offer of employment, and
• They notify IRCC of their job offer through the new process created for this purpose (which should be processed in an expedited fashion)

It would seem that this is a temporary measure which will be repealed after the COVID situation eases, but for now, workers (and others) physically in Canada, should be aware of the foregoing, and take advantage of the provisions if applicable and possible.

Failure to Restore

Though the government pronouncement is silent on the issue, it would seem that someone who fails to restore their status remains out of status, and is still therefore subject to immigration consequences including removal. As such, anyone who finds themselves without status at this moment should take action to correct the situation as quickly as possible. Further, employers who employ or seek to employ people without status (or currently with another employer) should be aware of this provision to allow them to engage employees appropriately.